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2016NOV -7 Anfi:l*5

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

MARIO ALBERTO ONTIVEROS,

Appellant.

DIVISION ONE

No. 72941-1-1

UNPUBLISHED OPINION

FILED: November 7, 2016

Dwyer, J. — Mario Ontiveros appeals from the judgment entered on a

jury's verdict finding him guilty oftwo counts of child molestation in the first

degree, two counts of assault in the fourth degree, and one count of

communicating with a minor for immoral purposes. He contends that the trial

court violated his constitutional right to present a defense, violated his

constitutional right to be present at all critical stages of the trial, admitted

irrelevant and prejudicial testimony, and violated hisright to a jury trial. Finding

no error, we affirm.

I

In 2004, 16-year-old Ontiveros moved from Texas to Washington to live

with his sister, Autumne, and her husband, Brad West.1 Ontiveros resided in

1Because Autumne and Brad share a surname they are referred to by their first names

for clarity.
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Washington for approximately two years. During this time, Brad's daughter from

a previous marriage, K.W., also stayed with her father every other weekend

during the school year, some holidays, and various weeks during the summer.

One afternoon in 2006, when she was 11 years old, K.W. called her

mother and asked to be picked up early from her father's house. During the drive

home, K.W. told her mother that, earlier that same day, Ontiveros told her that he

was masturbating, asked her ifshe knew how to masturbate, and suggested that

he could show her how. At that time, K.W. stated that Ontiveros had not touched

her. When they arrived home, K.W.'s mother called Brad, her ex-husband, and

discussed what K.W. had told her. Brad confronted Ontiveros, who, Brad

testified, admitted to having the aforementioned conversation with K.W. Brad

told Ontiveros to leave the house. Ontiveros returned to Texas soon after.

K.W. testified that she struggled with depression in high school and, as a

result, began to cut herself. K.W. revealed her self-harm to her mother,

explaining that she had not told her mother about everything that Ontiveros did to

her when she was younger. K.W. asked her mother for counseling. K.W. began

seeing a therapist, Logan Roth, and, during their first session, told Roth that a

man living in her father's house had touched her breasts and entered her room

every night when she was younger. Roth did not report the abuse to the police

or child protective services. K.W. voluntarily ended her treatment with Roth and

later reported to her high school counselor that she had been molested. This

counselor reported the allegations to the police.
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In August of 2012, police questioned Ontiveros about the incidents over

the telephone. Ontiveros first denied having any sexual contact with K.W. but,

after repeated questioning, later admitted that K.W. may have seen him

masturbating once and that he may have touched her breasts a few times while

tickling her. Two years later, Ontiveros was charged with four counts of child

molestation in the first degree and one count of communication with a minor for

immoral purposes.

The jury found Ontiveros guilty of two counts of child molestation in the

first degree, two counts of assault in the fourth degree, and one count of

communication with a minor for immoral purposes. The trial court imposed a

standard-range sentence of 78 months to life in prison on the child molestation

convictions. No jail time was imposed on the assault or communication

convictions. Ontiveros timely appealed.

II

Ontiveros first contends that the trial court violated his constitutional right

to present a defense. This is so, he asserts, because the court excluded his

expert witness's testimony regarding false confessions. Ontiveros's argument is

unavailing.

Trial courts have broad discretion in determining whether expert testimony

should be admitted. We review such rulings for abuse of discretion. State v.

Rafav. 168 Wn. App. 734, 783-84, 285 P.3d 83 (2012). "A court's decision is

manifestly unreasonable if it is outside the range of acceptable choices, given the

facts and the applicable legal standard; it is based on untenable grounds if the
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factual findings are unsupported by the record; it is based on untenable reasons

if it is based on an incorrect standard or the facts do not meet the requirements

of the correct standard." In re Marriage of Littlefield. 133 Wn.2d 39, 47, 940 P.2d

1362 (1997). While the right to present defense witnesses is a fundamental

element of due process, State v. Franklin. 180 Wn.2d 371, 382, 325 P.3d 159

(2014); State v. Ellis. 136 Wn.2d 498, 527, 963 P.2d 843 (1998), the right is not

absolute. The proffered evidence must be relevant and helpful to the trier of fact.

Ellis. 136Wn.2dat533.

ER 702 regulates expert witness testimony and provides, in pertinent part,

"[i]f scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or education, may testify

thereto in the form of an opinion or otherwise."

Prior to trial, Ontiveros sought to introduce the trial testimony of Dr.

Deborah Connolly. Connolly was prepared to testify about false confessions

generally. Additionally, Ontiveros contended that Connolly would have testified

specifically to: (1) various interrogation techniques used by the detective during

his interview with Ontiveros, including the "guilt presumptive" and "minimization

and sequential requests" techniques; (2) her opinion that Ontiveros "appeared to

be receptive to minimization and option-posing strategies"; and (3) her opinion

that Ontiveros's confession should be "treated with great caution."2

2Connolly'swritten report discusses several studies and academic papers, which

together constituted the offer of proof before the trial court. The portions of these studies that

related to Ontiveros's confession, and to which Connolly was prepared to testify, were included in

her report. At no time prior to preparing the report did Connolly speak to Ontiveros.

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We have previously examined expert testimony regarding false

confessions in State v. Rafav. 168 Wn. App. 734, a case referenced by the trial

court in ruling Connolly's testimony inadmissible. In Rafav. we upheld the trial

court's order excluding expert testimony on false confessions, in part, because

the testimony would not "provide any method for the trier of fact to analyze the

effect of the general concepts on the reliability of the defendants' confessions."

168 Wn. App. at 789.

Connolly's report describes guilt presumptive, confrontational, and

minimization/option-posing interrogation techniques and briefly explains the

relevant research relating to such techniques. Connolly opines that Ontiveros

was susceptible to the interrogation techniques used by the detective who

questioned him, and offers that "some individuals interpret [minimization and

sequential requests] as implicit offers of leniency. When it becomes clear to an

individual that continued denial is futile, and when the individual is offered a way

to minimize culpability, a confession or admission is a reasonable option."

Connolly's report also includes a study on academic dishonesty in which

various interrogation techniques—or no techniques at all—were used on

participants in order to determine which techniques produced higher rates of

false confessions. When no tactics were used, 46 percent of the guilty

participants confessed and 6 percent of the innocent participants confessed.

When the interrogators used minimization and leniency tactics, 87 percent of the
No. 72941-1-1/6

guilty participants confessed and 43 percent of the innocent participants

confessed.3

Although Connolly opines that Ontiveros "was amenable" to these

strategies, the report does not state (1) that Ontiveros was susceptible to falsely

confessing, or (2) that any interrogation technique used on Ontiveros was more

likely to produce false confessions than legitimate confessions. The minimization

and leniency techniques Connolly was prepared to testify to may produce more

false confessions than other techniques, but the report indicates that they also

produce more legitimate confessions.

There is nothing in the record to indicate that Connolly would have

testified that, in her opinion, Ontiveros's confession was false. At most, the

testimony would have been that the criticized techniques result in more

confessions (both true and false). Because of this, the testimony would have

merely advised the jury to treat the confession with caution.4 Ontiveros has not

identified anything in Connolly's report that would have assisted the jurors in

analyzing the evidence before them.

In reaching a verdict, the jury was tasked with deciding whether Ontiveros

was guilty or not guilty and, thus, whether his confession was true or false.

Connolly's testimony would not have assisted the jury in making such a

determination. Moreover, although Connolly would have testified that the

3The report presumes—but does not explain how—the results of a study on academic

dishonesty are relevant to police interrogations.

4Although courts may instructjuries to treat certain testimony with caution, such as

accomplicetestimony, State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984), such an instruction

sets forth a legal principle. This differs from the testimony as to facts expected from a witness.
No. 72941-1-1/7

interview techniques used on Ontiveros are likelyto increase the frequency of

confessions, this testimony would not have provided the jury with a method to

distinguish between false confessions and legitimate confessions. Such

testimony does not make the existence of a fact at issue more or less likely to be

true. ER401. Thus, it was irrelevant. ER402.

The trial court's ruling purported to exclude Connolly's testimony on the

basis that Connolly does not know if Ontiveros is innocent: "[s]o the testimony is

only relevant ifthe person, in fact, was innocent. And that is, of course, the

ultimate question for the jury anyway, and so it is not useful to the trier of fact."

Although the trial court relied on Rafav in issuing its ruling, its stated reason for

excluding the testimony misstates the scope of Rafav's holding.

Under the trial court's reasoning, expert testimony regarding false

confessions might never be admissible. To the contrary, such testimony may be

properly admitted in certain circumstances. For instance, such testimony may be

helpful to the jury in situations where the defendant has a specific personality or

mental disorder that renders them particularly vulnerable to coercive interrogation

methods. See United States v. Shay. 57 F.3d 126, 133 (1st Cir. 1995)

("[W]hether or not the jury had the capacity to generally assess the reliability of

these statements in light of the other evidence in the case, it plainlywas

unqualified to determine without assistance the particular issue of whether [the

defendant] may have made false statements against his own interests because

he suffered from a mental disorder.").
No. 72941-1-1/8

We do not go so far as to say that expert testimony on false confessions

may only be admitted in matters in which the defendant suffers from a personality

or mental disorder. However, Connolly's proposed testimony would not have

presented the jury with any information that would have aided the jurors in

determining a fact in issue. Thus, the trial court's ruling was within the range of

acceptable choices afforded to it. State v. Sisouvanh. 175 Wn.2d 607, 623, 290

P.3d 942 (2012); Littlefield, 133 Wn.2d at 47. There was no error.

Ill

Ontiveros next contends that the trial court violated his constitutional right

to be present during all critical stages of the trial. This is so, he asserts, because

the trial court and the attorneys discussed and formulated answers to questions

from the deliberating jury at a time when Ontiveros was not in the courtroom.

Both the federal and state constitutions provide criminal defendants with a

right to be present during critical stages of the trial. U.S. Const, amend. XIV, §

1; Wash. Const, art. I, § 22. Pursuant to Washington's constitution, this right

applies at any stage of the trial when the defendant's substantial rights may be

affected. State v. Irbv, 170 Wn.2d 874, 885-86, 246 P.3d 796 (2011). A

defendant does not have a right to be present during a conference between the

court and counsel on legal matters, unless those matters require the resolution of

disputed facts. In re Pers. Restraint of Lord. 123 Wn.2d 296, 306, 868 P.2d 835

(1994).

During its deliberations, the jury sent seven written inquiries to the trial

judge. The variousinquiries asked about the prosecutor's charging decisions

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No. 72941-1-1/9

and inquired about specific pieces of evidence. The trial court notified the

attorneys, who appeared in court, and the judge and counsel formulated answers

to the jury's questions. Ontiveros was not present during this discussion. After

receiving input from counsel, the court responded to the jury's questions

regarding the prosecutor's charging decisions by stating, "[t]he Court cannot

comment on charging decisions." Regarding the jury's evidentiary questions, the

court answered, "[questions about the facts of the case concern evidence. The

parties having rested, no further evidence will be introduced."

After the trial court sent these responses to the jury, Ontiveros's counsel

requested that the court provide additional answers to the jury. Specifically,

Ontiveros's counsel requested that the court instruct the jury that the charges are

not evidence, that the jury can consider both the evidence and lack of evidence,

and that the State has the burden to prove all elements of each offense beyond a

reasonable doubt.5 The court did not respond to this request because, at that

time, the jurors indicated that they had reached a verdict. Before hearing the

verdict, counsel for Ontiveros stated that Ontiveros had not been present for the

formulation of the court's responses to the jury's questions. There was no

objection interposed at this time, as counsel for Ontiveros was unsure whether

such a discussion constituted a critical stage of the trial requiring Ontiveros's

presence. After the adverse verdicts, Ontiveros moved for a new trial on the

ground that he was not present for the formulation of the answers which, he

5The trial court properly issued these instructions before deliberations began.

Ontiveros's counsel thus requested that the court instruct the jury on these matters a second

time.
No. 72941-1-1/10

asserted, constituted a critical stage of the trial. The motion for a new trial was

denied.

On appeal, Ontiveros again asserts that the trial court's formulation of the

responses to the jury's inquiries outside of his presence violated his constitutional

right to be present for all critical stages of the trial. This is so, he contends, for

two reasons: (1) because any communication between a judge and the jury

during a critical stage of the trial is prohibited, and (2) because the jury's

questions were factual in nature and formulating a proper answer required a

knowledge of the facts of the case. Ontiveros is wrong on both counts.

Ontiveros's first contention is without merit. Ontiveros has not established

that this was a critical stage of the trial that required his personal presence. The

trial court's responses to the jury questions herein were akin to supplemental jury

instructions, which may properly be given during deliberation. CrR 6.15(f); State

v. Becklin. 163 Wn.2d 519, 529-30, 182 P.3d 944 (2008). A trial court's decision

to give or decline to give supplemental jury instructions is within its discretion.

State v. Brown. 132 Wn.2d 529, 612, 940 P.2d 546 (1997). Providing the jury

with requested information on a point of law is not a criticalstage that required

Ontiveros's personal presence in addition to that of his counsel. State v. Brown,

29 Wn. App. 11, 16, 627 P.2d 132 (1981): State v. Jury. 19 Wn. App. 256, 270,

576P.2d 1302 (1978).6

6 Ontiveros relies on State v. Caliquri, 99 Wn.2d 501, 664 P.2d 466 (1983), to support his

assertion that any communication between a judge and the juryoutside of the presence of the

defendant is prohibited. The comparison is inapposite. In Caliquri, the trial court replayed tape

recordings for the deliberating jury—essentially giving the jury an opportunity to perceive the

evidence anew out of the presence of the defendant, including statements that had originally

been redacted. The trial court herein provided the jury with no such opportunity.

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No. 72941-1-1/11

As for Ontiveros's second contention, although the jury asked questions

regarding the facts, the trial court's responses were not factual in nature. Rather,

the court's answers set forth legal principles. Moreover, the trial court's

responses were "entirely neutral". State v. Russell. 25 Wn. App. 933, 948, 611

P.2d 1320 (1980). The court's responses to the jury's inquiries were "negative in

character and conveyed no affirmative information." State v. Safford. 24 Wn.

App. 783, 794, 604 P.2d 980 (1979). Thus, there was no error.

Ontiveros asserts that, were he personally present when the trial court

formulated its answers to the jury's questions, his attorney may have consulted

with him and may have asked for additional instructions before the jury finished

deliberating. This is pure speculation. Indeed, the supplemental jury instructions

eventually requested by defense counsel were duplicative of instructions already

given. The trial court could have properly refused to reissue those instructions

even ifthe request to do so had been timely made. State v. Hiqhtower. 36 Wn.

App. 536, 549, 676 P.2d 1016 (1984). Finally, the event itself (issuing

supplemental jury instructions) is not a critical stage. Jury, 19 Wn. App. at 270.

The trial court did not err in responding to the jury's inquiries.

IV

Ontiveros next asserts that the trial court erred by permitting testimony by

K.W. and her therapist, Roth, regarding K.W.'s self-harm and K.W.'s opinion as

to why she engaged in self-harm. This is so, he contends, because permitting

the aforementioned testimony was prejudicial, irrelevant, and materially affected

the outcome of the case.

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No. 72941-1-1/12

The trial court has broad discretion in balancing the probative value of

evidence against its prejudicial impact and we will not reverse the trial court's

decision absent a manifest abuse of that discretion. State v. Rivers. 129 Wn.2d

697, 710, 921 P.2d 495 (1996); State v. Greathouse. 113 Wn. App. 889, 918, 56

P.3d 569 (2002).

Pursuant to ER 402, only relevant evidence is admissible at trial. ER 401

defines "relevant evidence" as "evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without evidence." However,

even relevant evidence must be excluded when its probative value is

substantially outweighed by the danger of unfair prejudice. ER 403. "'"[U]nfair

prejudice" is that which is more likely to arouse an emotional response than a

rational decision by the jury'" and "suggestfs] a decision on an improper basis."

State v. Cronin. 142 Wn.2d 568, 584, 14 P.3d 752 (2000) (first alteration in

original) (quoting State v. Gould. 58 Wn. App. 175, 183, 791 P.2d 569 (1990)).

Prior to trial, Ontiveros moved to exclude evidence that K.W. had engaged

in self-harm, as well as K.W.'s opinion that her self-harm was a result of her

sexual abuse. The trial court ruled that K.W. could testify as to her self-harm,

and what she believed to be her reasons for harming herself, in order to explain

why she entered therapy. At trial, K.W. testified that she engaged in self-harm to

cope with the trauma of her sexual abuse. Similarly, Roth testified at trial that

K.W. disclosed her self-harm during their first therapy session and that K.W.

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No. 72941-1-1/13

believed her depression, self-harm, and inability to sleep were caused by her

sexual abuse.

On cross-examination, counsel for Ontiveros questioned Roth as to why

some people might engage in self-harm. Roth responded, "[t]hat would have to

come from them directly." On re-direct, Roth stated that she had not reached

any conclusions as to why K.W. was harming herself, but believed that a person

is able to determine for themselves why they are doing so.

Ontiveros asserts that the aforementioned testimony was irrelevant and

prejudicial. He also takes issue with the opinion testimony offered by Roth

despite the trial court's ruling in limine that Roth could not testify as an expert

witness.7

We review the trial court's decisions on this testimony to determine

whether the decisions were manifestly unreasonable, based on untenable

grounds, or made for untenable reasons. Sisouvanh, 175 Wn.2d at 623; Gould,

58 Wn. App. at 180. The trial judge ruled that K.W.'s testimony regarding her

self-harm was admissible on the question of why she entered therapy.8 Roth's

testimony was limited to that which K.W. told her during therapy and was

admitted for the same purpose as K.W.'s testimony. The trial court's ruling is at

least "fairly debatable" and, thus, does not constitute an abuse of discretion.

Walker v. Bangs. 92 Wn.2d 854, 858, 601 P.2d 1279 (1979).

7Although Roth was not permitted to testify as an expert, the State conceded at trial that

Roth'stestimony regarding why people might engage in self-harm was opinion testimony that

required a jury instruction on the use of expert testimony.

8This is a case of delayed reporting. That a person delays in reporting a sexual assault

can give rise to an inference that the traumatic event likely did not happen. K.W.'s testimony on

her need for therapy also served to rebut that inference.

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No. 72941-1-1/14

With regard to the opinion testimony given by Roth, the only such

testimony was first elicited by Ontiveros's own counsel. When defense counsel

asked Roth's opinion as to why some people engage in self-harm, the door was

opened for the State to inquire on the same subject on redirect. See, e.g.. State

v. Jones. 111 Wn.2d 239, 248-49, 759 P.2d 1183 (1988) (holding that

questioning by defense counsel opened the door for the prosecution to ask about

otherwise inadmissible evidence).

There was no trial court error.

V

Finally, Ontiveros contends that the trial court denied him his right to a jury

trial. This denial, he asserts, arose from the trial court's ruling prohibiting

Ontiveros from questioning potential jurors about specific wrongful conviction

cases.

Trial courts have broad discretion in determining the scope and extent of

voir dire. CrR 6.4(b); State v. Frederiksen. 40 Wn. App. 749, 752, 700 P.2d 369

(1985). "The trial court's exercise of discretion is limited only by the need to

assure a fair trial by an impartial jury." Frederiksen. 40 Wn. App. at 752 (citing

United States v. Jones. 722 F.2d 528, 529 (9th Cir. 1983)). We will reverse a

trial court's ruling on the scope of voir dire onlyfor an abuse of discretion and

only if the defendant shows that the abuse substantially prejudiced him. State v.

Brady, 116 Wn. App. 143, 147, 64 P.3d 1258 (2003) (citing State v. Davis. 141

Wn.2d 798, 825-26, 10 P.3d 977 (2000)). "The refusal to permit specific

questions is not reversible error absent an abuse of discretion, which will be

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No. 72941-1-1/15

found only ifthe questioning is not reasonably sufficient to test the jury for bias or

partiality." Frederiksen. 40 Wn. App. at 752.

Prior to conducting voir dire, the trial court prohibited Ontiveros's attorneys

from questioning potential jurors about specific cases involving wrongful

convictions. The court clarified that general questions about a potential juror's

concerns, including concerns about a person's guilt or innocence, would be

permitted, stating, "I will only preclude lawyers from raising specific questions

either by name or by particular facts".

Ontiveros contends that such a prohibition was an abuse of discretion that

resulted in substantial prejudice to his cause. In support of this proposition,

Ontiveros cites to State v. Brady. 116 Wn. App. 143. However, the comparison

is inapt. In Brady, the trial court allotted time for all attorneys to use for voir dire,

but then ended voir dire before that time expired. We held in Brady that the trial

court abused its discretion because it "changed the rules" part way through the

voir dire. 116 Wn. App. at 148-49. The trial court in Brady abused its discretion

because the parties had initially set aside important questions, only to later

discover that they would be unable to pursue those lines of questioning.

This is not such a case. The trial court here set the rules for voir dire

beforehand and did not alter those rules thereafter. Counsel was permitted to

question jurors about concerns they may have had regarding a party's guilt or

innocence and respond to any juror questions about specific cases.

Ontiveros speculates that, had his counsel been permitted to ask about

specific, wrongful conviction cases, a juror may have revealed a bias deserving

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No. 72941-1-1/16

of a preemptory challenge. However, Ontiveros has not demonstrated why the

line of permitted questioning—regarding a juror's concerns about guilt or

innocence—was insufficient to explore these biases. Consequently, Ontiveros

does not establish that the trial court's prohibition substantially prejudiced him.

There was no error.

Affirmed.

T

We concur:

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